The right of a state to secede from the nation is way outside my personal injury wheelhouse. But it has become a source of conversation on professorial and political blogs, and the concept has generated interest from the Tea Party movement.

As it happens, my brother has a letter from Justice Antonin Scalia that is directly on point as to the legitimacy of secession. How he got that letter, and its contents, are the subject of today's post.

The inspiration for writing, and the release of the letter, comes from Prof. Eugene Volokh, who wrote, "I keep hearing the claim that the legitimacy of secession from the U.S. was 'settled at Appomattox,' and I wanted to say a few words about why I think that makes little sense."

The good prof goes on to write that, while clearly not supporting secession of any State in concept, that the issue is far from settled. He writes:

If in 2065 Alaska, California, Hawaii, or Texas (just to consider some examples) assert a right to secede, the argument that "in 1865, the victorious Union government concluded that no state has a right to secede in opposition to the wishes of the Union, so therefore you lack such a right" will have precisely the weight that the Americans of 2065 will choose to give it -- which should be very little.

Thus far, that post has generated 152 comments.

Well prof, Justice Scalia disagrees with you. Explicitly. Why did he do so in a letter to my brother? Glad you asked.

Dan is a screenwriter (whose screenplay Tranquility Base was just named a finalist at the Vail Film Festival, and previously took top honors elsewhere). Back in 2006 he started working on a political farce that had Maine seceding from the United States and joining Canada.

Bro was well ahead of the tea partiers in contemplating impending problems as we racked up massive debt. This doesn't get him an agent or a foot in the door of Hollywood to get his screenplays made into films -- it isn't what you write, but who you know -- but it does make him a prophet of sorts.

So, on a lark, he wrote to each of the 10 Supreme Court justices (including O'Connor) with this request:

I'm a screenwriter in New York City, and am writing to see if you might be willing to assist me in a project that involves a unique constitutional issue.

My latest screenplay is a comedy about Maine seceding from the United States and joining Canada. There are parts of the story that deal with the legality of such an event and, of course, a big showdown in the Supreme Court is part of the story.

At the moment my story is a 12 page treatment. As an architect turned screenwriter, it is fair to say that I come up a bit short in the art of Supreme Court advocacy. If you could spare a few moments on a serious subject that is treated in a comedic way, I would greatly appreciate your thoughts. I'm sure you'll find the story very entertaining.

I told Dan he was nuts. I told him his letter would be placed in the circular file. And then Scalia wrote back. Personally. Explicitly rejecting the right to secede:

I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, "one Nation, indivisible.") Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

I am sure that poetic license can overcome all that -- but you do not need legal advice for that. Good luck with your screenplay.

So there you have it. At least one vote solidly on record as saying that there is no right to secede. And it likely comes from a place the right wing secessionists most wanted to have a vote.

And yes, Dan still needs an agent. Because writing great scripts isn't enough if you don't know The Powers That Be on the other coast. And, for what it's worth, his now-completed script of Maine joining Canada is better than his award-winning one about a mis-adventure in space.

How ironic that the institution of the federal government, created at the pleasure of the states, thinks they can take away the right of those same states to secede.

I'm not sure why we get so wrapped up in the "right" to secede. Did the colonists have a "right" to secede from England? Not a legal right, but a moral one. So really, if a critical mass of citizens want to do assert their sovereignty, then they simply do so. I would suggest using the Declaration of Independence as a good place to start....just update the text with modern phrasing and insert appropriate examples of tyrannical abuses. Whether or not an armed conflict would result, would depend on the players involved.

sc10000

the Declaration of Independence as a good place to start....just update the text with modern phrasing and insert appropriate examples of tyrannical abuses.

Rightly said; replace 'Great Britain' with 'New World Order'............We the People, living under natural law, do have the 'right' to secede from ANY FORM OF GOVERNMENT and will continue to do so until our last breath.

How ironic that the institution of the federal government, created at the pleasure of the states, thinks they can take away the right of those same states to secede.

I'm not sure why we get so wrapped up in the "right" to secede. Did the colonists have a "right" to secede from England? Not a legal right, but a moral one. So really, if a critical mass of citizens want to do assert their sovereignty, then they simply do so. I would suggest using the Declaration of Independence as a good place to start....just update the text with modern phrasing and insert appropriate examples of tyrannical abuses. Whether or not an armed conflict would result, would depend on the players involved.

welcome to the forum. Great first post.

Logged

"My heroes are people who monkey wrench the new world order". - Jello Biafra

Lincoln destroyed the real Constitution, just like the Austrians say, and the elites see the civil war as justification to stop all further successions. Nothing do to with slavery

The act of ratification is a legal contract. The several states agreed to be bound by a duly "Constituted" federal agency of union that would conform them with and make it abide by the laws as set out in their Constitution. Therefore the US Constitution is both the "contract" in question and the "law" that governs it (makes it enforceable or nullifies it and it's contracted ratification by member states).

If the Federal agency establishes an unconstitutional standing army or an unconstitutional secret blank cheque of marquee CIA/NSA/DIA Mafia and Secret National Insecurity Dictatorship or an unconstitutional private "federal reserve" currency printing lending monopoly, or an unconstitutional unapportioned "income tax" than THAT FEDERAL PARTY is in breach of it's contract, and IT HAS SECEDED FROM it's contractees. The delinquent federal agency is the "nullifier" of the terms of it's own contract under it's own law.

The so-called right of secession issue in the Civil War was not a matter of territorial integrity, it was a matter of contract and law. The Federal agency was fully compliant with the terms of the parties duly ratified contract and it's lawful enforceability. The matter of abolition was not yet anywhere near being any part of the Constitution, and even the Missouri Compromise issue had been resolved within the Union.

The issue was a matter of disagreements between the South (South Carolina in particular) over prohibitive tariff laws imposed by the more influential northern (abolitionist) state influences that South Carolina (falsely) claimed, and that they alone tried to paint as such a matter of "NULLIFICATION", but they were simply being counter revolutionaries opposing a lousy tax:

Nearly all the southern Legislatures consequently denounced the tariff as unjust and as hostile to our fundamental law. Most of them were, however, prudent enough to suggest no illegal remedies. Not so with fiery South Carolina, where a large party, inspired by Calhoun, proposed a bold nullification of the tariff act, virtually amounting to secession. At a dinner in this interest at Washington, April 13, 1830, Calhoun offered the toast: "The Union; next to our liberty the most dear; only to be preserved by respecting the rights of the States."

John C. Calhoun was now, except, perhaps, Clay, the ablest and most influential politician in all the South. Born in South Carolina in 1782, of Irish-Presbyterian parentage, though poor and in youth ill-educated like Clay and Jackson, his energy carried him through Yale College, and through a course of legal study at Litchfield, Conn., where stood the only law school then in America. November, 1811, found him a member of Congress, on fire for war with Britain. Monroe's Secretary of War for seven years from 1817, he was in 1825 elected Vice-President, and reelected in 1828. He had meantime turned an ardent free-trader, and seeing the North's predominance in the Union steadily in creasing, had built up a nullification theory based upon that of the Virginia and Kentucky resolutions and the Hartford Convention, and upon the history of the formation of our Constitution. He had worked out to his own satisfaction the untenable view that each State had the right, not in the way of revolution but under the Constitution itself--as a contract between parties that had no superior referee--to veto na tional laws upon its own judgment of their unconstitutionality.

The simple fact was that the Constitution was vague on the issue of slavery, despite all of the north (Quakers in particular) and the great Virginians loathing it immensely:

...the foreign slave trade went on. The institution found many defenders in the Federal Convention of 1787, and in the first and subsequent Congresses. The pleas began to be raised, so current later, that the negro was an inferior being, slavery God's ordinance, a blessing to slaves and masters alike, and emancipation a folly. Now began also that policy of bravado by which, for sixty years, the friends of slavery bullied their opponents into shameful inaction upon that accursed thing politically as well as morally, which was so nearly to cost the nation its life. Thus stood matters when the Missouri Compromise was mooted in the national Legislature.

We hardly need say that this strife ended in a compromise. Missouri was created a slave State, balanced by Maine as a free State, but at the same time slavery was to be excluded forever from all the remainder of the Louisiana purchase north of 36 degrees 30 minutes, the southern line of Virginia and Kentucky as well as of Missouri itself. The land between Missouri and Louisiana had been in 1819 erected into the "Territory of Arkansaw."

In the memorable discussion over this issue, involving the country as well as Congress, two sorts of argumentation were heard in favor of the suit of Missouri. The genuine pro-slavery men urged the sacredness of property as such, and the special sacredness of property-right in slaves as tacitly guaranteed by the Constitution. They also made much of the third article of the Louisiana purchase treaty. This read as follows:

Quote

"The inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citi­zens of the United States; and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess."

There were with these, men who acted from mere policy, thinking it best to admit the slave State because of the difficulty and also the danger to the Union of suppressing slavery there. They appealed as well to the sacred compromises in the Constitution, meaning the permission at first to import slaves, the three-fifths rule for slave representation in Congress, and the fugitive slave clause. They spoke much of the necessity of preserving the balance of power within the Union, and of Congress's inaction as to slavery in the Louisiana purchase hitherto, and also in Florida. These arguments won many professed foes of slavery, as Jefferson, Madison, Monroe and Quincy Adams. In all Congress Clay was the most earnest pleader for the compromise.

To all these arguments the unbending friends of free soil replied that property right was subordinate to the national good, and that Congress had full power over territorial institutions and should never have permitted slavery to curse the domain in question. If it had committed error in the past, that could not excuse continuance in error. The terms of the Louisiana pur chase, it was further urged, could not, even if they had been meant to do so, which was not true, detract from this sovereign power. It was pointed out that in every case in which a State had been admitted thus far, Congress had prescribed conditions. It was boldly said, still further, that if slavery threatened disunion unless allowed its way, it ought all the more to be denied its way.

Contrary to Scalia's knee-jerk rabid Tory-conservatist nonsense, the issue of South Carolina invoking the contractual issue of Constitutional Nullification (the nullification of a ratified contract) was the result of a flaw in the Constitutional contract and a flaw in it's own law. The Federal agency had no unilateral right to enforce nor amend a badly written immoral contract nor to change it's terms in fact, practice or unfair effect, but it's acts (Tariffs) were not contrary to any law nor other term of it. South Carolina was wrong - the contract was good!

There was no "nullification" nor "breach of contract" nor "breach of law" the issue of Souith Carolina UNILATERALLY rejecting and defying Federal Law was the breach!

A contract to do something illegal is null and voided by that nature. A Constitutional Contract, however is also the law. Holding slave "property" was legal under the terms of the constitution, and so was erecting tariffs, be they fair or foul to the business of slavery.

Basically the constitution was tragically flawed. it's law of "property rights" was also further atrociously (yet sorta "lawfully") hate-amended to "bible-lawfully" (established Levitican/Episcopal Fascism) include black human beings as property! This should have been challenged by abolitionists as "established religionism" but it never was. Neither did the north have the guts to try to repeal the offensive amendments supporting slavery they all so loathed.

The things in this deeply flawed and hateful established religious-socialist falsely (and actually unconstitutionally) "amended" constitution in force at the time that supported Episcopal Fascist "Inhumane Human Property-socialism" are summarized thus:

Quote

... the sacred compromises in the Constitution, meaning the permission at first to import slaves, the three-fifths rule for slave representation in Congress, and the fugitive slave clause

Thus South Carolina, (Calhoun) in responding to a mere (anti-slavery profit) trade tariff it (he) didn't like, by enacting an unconstitutional (and thus illegal) "law" defying lawful federal authority to lawfully enact such punitive tariffs, and trying to blame that lawless act on "nullification" was wrong, false and illegal! South Carolina was in "breach of contract", there was no nullification.

Quote

Calhoun's idea, though advocated by him with consummate skill, was shown to be wholly chimerical. The doughty South Carolinian, from this moment a waning force in American politics, was supported by Hayne almost alone, the arguments of both melting into air before Webster's masterful handling of constitutional history and law.

THE GREAT NULLIFICATION

Not questioning the right of revolution, admitting the general government to be one of "strictly limited," even of "enumerated, specified, and particularized powers," the Massachusetts orator made it convincingly apparent that the Calhoun programme could lead to nothing but anarchy. It was seen that general and state governments emanate from the people with equal immediacy, and that the language of the clause, "the Constitution and the laws of the United States made in pursuance thereof" are "the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding," means precisely what it says. To this language little attention had apparently been paid till this time.

Now when we look at a federal government that is passing (and has passed and illegally enacted) illegal and unconstitutional laws, it is now they who are the South Carolinians who in fact have caused "nullification" by their lawless disobeyance of the supreme law and their contractual obligations to their member states to respect it, in many different ways. The Federal Government is in "breach of Contract' that ALONE NOW FOR THE FIRST TIME, CLEARLY CONSTITUTES genuine "NULLIFICATION" as never before

I also left out unapportioned Income Tax. (at least, proposed as an amendment, but never ratified either)

When the federal agency no longer fully and completely subscribes to either the law (Constitution) nor it's contracts with the states (ratifications under the terms of the Constitution) and further, refuses to honor it's legal obligations to justly scrutinize those illegal "laws" of itself all clearly contrary to that law nor even entertain lawsuits before it's "court" to make such determinations, it has formally and completely "nullified" it's own Constitution and the "Union pursuant" to that Constitutional paper monarch's lawful authority.

The "United States of America" has thus in the final (and any and all) analysis, "nullified" itself.

This is why they are so desperate to hold on to the executive powers of the states

This is why they are so desperate to hold on to the executive powers of the states

Agreed. Until we realize the emperor has no clothes, the gov will continue to take power away from the states. So why do people wrangle over a 'legal' means of throwing off their bonds of tyranny? What's the point? You either decide to be sovereign, or you don't. The rest is simply asserting that sovereignty through whatever means. Sure, you could try to find a legal avenue, but we all know how the PTB bend and mold the law to suit their own goals. They ain't gonna let secession happen 'legally'.

Looking at this in 2010, all it would take would be a critical mass of like-minded people in a powerful state. Let's say Texas. Heck, they have enough reason to declare sovereignty based solely on the fed gov's abdication of responsibility of the 'mexican invasion' problem. Texas easily has enough energy, resources, and willpower to go it alone. With enough popular support, the state assembly could just say "OK, we're going to be an independent republic now, been nice knowin' ya!" Of course there would be a lot of headaches, and various deals would have to be negotiated with the 49-state USA. Such as, do you give back the regular military equipment, but keep those owned by the Guard? Do you have to repay a portion of infrastructure improvements to the fed? Do you need to pay back the fed for the FEMA relief from the latest hurricane?

My point is, it isn't up to the Supreme Court or anyone else who has the 'right' to secede. Therefore, asking permission is irrelevant.

Agreed. Until we realize the emperor has no clothes, the gov will continue to take power away from the states. So why do people wrangle over a 'legal' means of throwing off their bonds of tyranny? What's the point? You either decide to be sovereign, or you don't. The rest is simply asserting that sovereignty through whatever means. Sure, you could try to find a legal avenue, but we all know how the PTB bend and mold the law to suit their own goals. They ain't gonna let secession happen 'legally'.

Looking at this in 2010, all it would take would be a critical mass of like-minded people in a powerful state. Let's say Texas. Heck, they have enough reason to declare sovereignty based solely on the fed gov's abdication of responsibility of the 'mexican invasion' problem. Texas easily has enough energy, resources, and willpower to go it alone. With enough popular support, the state assembly could just say "OK, we're going to be an independent republic now, been nice knowin' ya!" Of course there would be a lot of headaches, and various deals would have to be negotiated with the 49-state USA. Such as, do you give back the regular military equipment, but keep those owned by the Guard? Do you have to repay a portion of infrastructure improvements to the fed? Do you need to pay back the fed for the FEMA relief from the latest hurricane?

My point is, it isn't up to the Supreme Court or anyone else who has the 'right' to secede. Therefore, asking permission is irrelevant.

Any attempt to secede would be met with a military response by the federal govt...

Any attempt to secede would be met with a military response by the federal govt...

Perhaps, perhaps not. That would certainly be something to factor in, and are people willing to accept those consequences. Our forefathers would have been willing, but most of us have turned to milquetoast! As they say however, don't mess with Texas